Lawsuit Over Instagram Pic of Dying Patient Moves Forward Against HCA Kendall

Jose Lopez Canizares was treated "like an art exhibit" while he was dying at HCA Kendall Hospital, according to his father's attorney. In the kind of patient-privacy breach evermore common in the social media age, an employee of the medical center posted a photo on social media of Lopez fatally wounded in the emergency room.

"God knows how many people saw it," attorney Robert Solomon tells New Times. "It's a complete breach of trust."

The 18-year-old had been airlifted to the hospital after a driver allegedly ran a red light and struck him while he was riding a motorcycle in Kendall Lakes. When Lopez arrived at the emergency room on May 28, 2022, the hospital worker took at least three photos of him as he lay unconscious in the trauma bay.

The staff member texted the photos to coworkers and posted an image of the patient's injuries on Instagram with the hospital geo-tag, Solomon says.  The post tagged another employee who then shared the picture on his Instagram account with 3,000 followers, adding in emoji symbols, the attorney says.

Solomon, who is representing the accident victim's father, Jose Fabian Lopez, tells New Times there were 20 employees in the ER, but no one intervened in the photo-snapping.

"Basically, they were treating his son like an art exhibit," the attorney says.

As previously reported by New Times, the older Lopez is suing HCA Kendall in Miami-Dade court for invasion of privacy and intentional infliction of emotional distress, among other counts.

The lawsuit alleges the hospital was aware of the post as early as June 1, 2022, but waited three weeks to inform the father. The elder Lopez says he learned about the social media post from a hospital official on the day he took his son off life support.  His son passed away shortly after, on June 23, 2022.

HCA Kendall's attorneys have fought to have the claims against the hospital dismissed, arguing that if there was a breach of privacy or other tort, they were committed against the son, not the father.

The hospital is owned by HCA, a publicly traded healthcare corporation that has more than 180 hospitals in its portfolio nationwide. It persuaded the presiding judge to dismiss a negligence count, though the lawsuit is inching towards trial on other grounds.

The hospital has pointed to a 1989 appeals court ruling that warned that "if courts were to allow relatives of tort victims compensation for the distress they suffer when they receive bad news about family members when there is no attendant intentional or reckless conduct directed toward them, an avalanche of litigation would ensue."

In one of its motions, the hospital claimed the posted imagery was a close-up of the patient's severe leg injury and did not contain any identifying information.

Solomon counters it would not have been difficult to identify the patient, considering that on any given day, not many people are airlifted to a hospital.

The attorney has also pointed to a Florida case in which a mother filed a lawsuit after police in the central Florida city of Minneola shared photographs and video of her son's autopsy with people who were not law enforcement and had nothing to do with the investigation.

"One who behaves outrageously with regard to pictures of a dead body can be presumed to know that severe emotional distress will be inflicted thereby on those who were closely related to the deceased," an appeals court judge ruled in the case in 1991, overturning a lower court's judgment in favor of the police.

Solomon has named the HCA Kendall employee who allegedly first shared the photo, Alex Marcovich, as a defendant alongside the hospital and the worker who is accused of reposting the photo.

A mediator's June report indicated that no agreement had been reached between the plaintiff and defendants. As the case moves closer toward trial, Lopez has filed a proposal for a settlement.

The case is one of several recent instances nationwide involving medical staff allegedly snapping photos of patients and posting them on social media.

In 2021, a neonatal intensive care nurse at Jackson Memorial Hospital was fired after she was accused of posting a photo of a baby with a birth defect on social media. That same year, surgical residents at a Michigan hospital were investigated by Spectrum Health for allegedly posting pictures of patients' removed organs alongside comical captions.

HCA Kendall Hospital's June 2022 letter to Jose Fabian Lopez included an apology acknowledging that an employee had infringed upon his son's medical privacy and that the post had been removed.

"We have addressed the situation and are taking steps to prevent such incidents from happening in the future," the letter states.

According to Solomon, the two employees who posted the photos online were still working at the hospital as of two months ago. He says they were reprimanded and returned to work.

Lopez's lawsuit alleges the hospital failed to disclose to Lopez that more than one employee had posted images of his son's gruesome injuries on social media.

"HCA Florida Kendall Hospital facilitated the actions of the posting of these images on social media by either nonexistent or inadequate or insufficient training," the lawsuit claims.